Ottawa, AFN appeals court’s decision to reject $20 billion child welfare settlement

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The federal government and the Assembly of First Nations will seek a judicial review of the Canadian Human Rights Tribunal’s decision to reject Ottawa’s $20 billion offer to settle a class-action lawsuit over the chronic underfunding of the on-reserve child welfare system.

Indigenous Services Minister Patty Hajdu and Crown-Indigenous Relations Minister Marc Miller told reporters Wednesday afternoon in Ottawa that the Liberals want “clarity” on how to deal with the parts of the agreement rejected by the court.

“We will continue to work with the parties to compensate children who were removed and harmed, but have also today filed a judicial review to have the court look at some of the aspects of the settlement agreement that were not accepted,” said Hajdu.

“We have some disagreements about some elements of the ruling and for that reason we are appealing,” Miller added.

The AFN also has issues with the tribunal’s decision, which prompted the advocacy organization to file its own legal challenge, Manitoba Regional Chief Cindy Woodhouse told a virtual press conference after the federal announcement.

“AFN will also seek a judicial review to ensure that the rights of our children and families are fully respected in this process and that they receive the compensation they are entitled to,” Woodhouse said.

“We will also continue to press Canada to explore all options, including seeking a negotiated solution to get compensation flowing.”

Last week, Woodhouse told CBC News the AFN had not “ruled anything out” when asked if the assembly was considering a legal challenge, while the government refused to say what their plans were.

The class-action settlement, announced in January and signed in June, promised to compensate victims of the First Nations’ discriminatory child welfare system, but the entire pact was “contingent” on the court declaring a pre-existing 2019 compensation order satisfied.

The court rejected the settlement in October

In an Oct. 24 letter decision, the court said the proposed settlement essentially covered its standing order, but declined to declare it satisfied because some children covered by its damages ruling would be left out of the class-action settlement.

Anyone directly affected by a federal court order or decision can challenge that decision through judicial review “within 30 days after the time the decision or order was first communicated,” according to the Federal Court of Canada.

The letter is only a summary and not the court’s formal written decision, so AFN felt it was necessary to protect its rights while awaiting the full reasons, Woodhouse said.

“We look forward to the full decision, and in the meantime we are making sure.”

The case dates from 2007, when AFN and Cindy Blackstock filed a human rights complaint with the Canadian Human Rights Commission. In a landmark 2016 ruling, the court found that Canada’s funding practices were racist and constituted systematic human rights violations, a decision that was never challenged.

The court said this racial discrimination was “intentional and wanton” in 2019 when it ordered Canada to pay the statutory maximum of $40,000 to each victim and certain family members, which was judicially reviewed last year.

Cindy Blackstock, executive director of the First Nations Child and Family Caring Society, says Canada should have paid the court’s compensation order. (Olivia Stefanovich/CBC)

Canada lost that notification, and Blackstock, reached by phone after the announcement, said Canada should have complied and paid the victims.

“The court made a final order for damages. It was upheld by the federal court and Canada should have paid it,” Blackstock said.

“There should have been no more lawsuits after that.”

Canada has challenged the outcome of the judicial review in the Federal Court of Appeal and is due to decide what to do with the case in early December.

The human rights complaint has already had about 30 court orders issued over 15 years, and Canada has yet to secure a victory in any legal arena that was not later overturned, Blackstock said.

“Canada has lost every single one of these reviews, with the exception of one that was overturned on appeal,” she said.

“I don’t understand why they are paying taxpayers’ money on this losing legal battle that also denies children’s rights. It is, to me, so disappointing and totally against the spirit of reconciliation.”

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